The Marrakesh Treaty, 2013

BACKGROUND

Each year, of the millions of books published worldwide, more than 90% of all published material is not accessible to the blind or partially sighted.[1] The Marrakesh Treaty is to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled. The Marrakesh Treaty was adopted by the Member States of the World Intellectual Property Organization (WIPO) on June 27, 2013, to address this problem, commonly referred to as the global book famine.[2]  The Marrakesh Treaty is the first copyright treaty to include human rights principles outlined in the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This is an initiative to solve the challenge of improving access to books and other printed works for persons with print disabilities. The Marrakesh Treaty aims to improve and enhance the availability and cross-border exchanges of certain works and other protected subject matter in accessible formats for persons belonging to print-disabled community.

The copyright law comes under national jurisdiction which has the effect of preventing blind organizations from sharing books with neighbouring countries, thus causing unnecessary duplication of production of books in accessible formats. The treaty will considerably increase the availability of accessible books all over the world and support the mitigation of the predominant book famine. Currently only 5% of all published books in the developed countries and less than 1% in the developing countries are ever produced in accessible formats – such as braille, large print and audio – that visually impaired people and print disabled people need for equal reading enjoyment.[3] The treaty provides for the exchange of accessible format works across borders by organizations that serve people who are blind, visually impaired, and print disabled. It will harmonize limitations and exceptions so that these organizations can operate across borders.

CONTENTS OF THE TREATY

The preamble[4] states the objectives of the treaty as:

• Recalling the principles of non-discrimination, equal opportunity and accessibility to all people as proclaimed in the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities,
• Mindful of the challenges that are prejudicial to the complete development of persons with visual impairments or with other print disabilities, which limit their freedom of expression,
• Aware of the barriers of persons with visual impairments or with other print disabilities to access published works in achieving equal opportunities in society, and the need to both expand the number of works in accessible formats and to improve the circulation of such works,
• Taking into account that the majority of persons with visual impairments or with other print disabilities live in developing and least-developed countries,
• Recognizing both the importance of rightholders’ role in making their works accessible to persons with visual impairments or with other print disabilities and the importance of appropriate limitations and exceptions to make works accessible to these persons, particularly when the market is unable to provide such access,
• Recognizing the importance of the international copyright system and desiring to harmonize limitations and exceptions with a view to facilitating access to and use of works by persons with visual impairments or with other print disabilities,

A “beneficiary” is a person who is affected by one or more of a range of disabilities that interfere with the effective reading of printed material. This broad definition includes persons who are blind or visually impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability or is physically disable to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.

The Marrakesh Treaty requires that Contracting Parties fulfil two main obligations when implementing the Treaty at the national level, although they may do so according to their own legal systems. The first is to provide for a limitation or an exception to copyright in order to allow “beneficiaries” and “authorized entities” to undertake any changes needed to make a copy of a work in an accessible format for persons with a print disability. The second is to allow the exchange across borders of those accessible copies produced according to the limitations and exceptions provided in the Marrakesh Treaty, or in accordance with the operation of law.

The Marrakesh Treaty has no formal or interrelationship with other treaties and does not affect the obligations of contracting parties under other international agreements.[5] In the definition, the Marrakesh Treaty states “authorized entities” means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.[6] During implementation of the limitations and exceptions provided for in this Treaty, Contracting Parties shall endeavour to protect the privacy of beneficiary persons on an equal basis with others.[7]

ENTRY INTO FORCE

Hundreds of negotiators from different nations gathered in Morocco to finalize an international treaty designed to ease access to published material for persons who are blind, visually impaired, or otherwise print disabled. The treaty, called the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, adopted on June 27, 2013 in Marrakesh, Morocco and it forms part of the body of international copyright treaties administered and guided by WIPO. The treaty came into force on September 30, 2016. The first 20 countries ratified the Treaty were: India, El Salvador, the United Arab Emirates, Mali, Uruguay, Paraguay, Singapore, Argentina, Mexico, Mongolia, the Republic of Korea, Australia, Brazil, Peru, the Democratic People’s Republic of Korea, Israel, Chile, Ecuador, Guatemala and Canada. The Treaty is open to any Member State of WIPO, the European Union or other intergovernmental organizations authorized by its Assembly of Contracting Parties. There is no criterion to be a member of any other international copyright treaty to join this Treaty. To date 65 countries in the world have ratified the Treaty, including the following ones in Europe: Russia, Moldova, Switzerland and most recently Serbia.[8]

This is the first intellectual property treaty that intends to benefit the public interest rather than the interests of rights holders. All WIPO member states are eligible to become a party to the Marrakesh Treaty and in order to become a member; a state must deposit an “instrument” declaring its intention with the Director General of WIPO. This instrument must be signed by the Head of State, the Head of Government or the Minister of Foreign Affairs.[9] The treaty addresses a solution to the “book famine” by requiring its member states to adopt national law provisions that permit the reproduction, distribution and making available of published works in accessible formats (braille, large prints or audio) through limitations and exceptions to the rights of copyright holders.

POSITIVE EFFECTS OF MARRAKESH TREATY

• CREATING AWARENESS OF THE HINDRANCE FACED BY PEOPLE WITH PRINT DISABILITIES.

It is anticipated that the Treaty will have certain positive effects in countries where it is implemented, where the greatest numbers of persons with print disabilities live, including developing and least developed countries. The treaty highlights and implements necessary policies that benefit persons with disabilities and foster discussion for their development. For example, the implementation of the Marrakesh Treaty could provide access to works for persons with other types of disabilities, or trigger actions to implement additional provisions of the UNCRPD, in favour of the wider community of persons with disabilities.[10]

• REDUCE UNNECESSARY DUPLICATION OF WORK AND FACILITATE CROSS BORDER EXCHANGE

This sharing of works in accessible formats should increase the overall number of works available because it will eliminate duplication and increase efficiency. For instance, instead of five countries producing accessible versions of the same work, the five countries will each be able to produce an accessible version of a different work, which can then be shared with each of the other countries.[11] The treaty will also provide assurances to authors and publishers that this system will not expose their published works to misuse or distribution to anyone other than the intended beneficiaries. The treaty reiterates the cross-border sharing of works created based on limitations and exceptions is limited to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. The cross-border exchange of copyrighted books will now be legal without the permission of rights holders to serve these communities with print disabilities.

• INCREASING ACCESS TO EDUCATION FOR THESE COMMUNITIES.

Education plays a crucial role in developing the lives of the disabled people’s in a society. This also helps to seek to address the social oppression of person’s labelled as disabled and encourage them to develop their spheres of individual life. The Marrakesh Treaty will foster the availability of accessible format educational materials to people with print disabilities so that they will be able to enjoy equal access to education.

• ENCOURAGING SOCIAL AND CULTURAL PARTICIPATION

Equal access to common sources of knowledge and information by these communities not only help them to learn and imbibe knowledge but also encourage social inclusion and cultural participation. The treaty will facilitate inclusion of these communities in social and cultural perspectives, to gain knowledge and participate in common activities that common people used to engage in. Providing materials and helping them to learn more will help these communities to indulge more in society.

• POVERTY ALLEVIATION AND CONTRIBUTES TO ECONOMIC GROWTH OF A COUNTRY

By providing access to learning materials in accessible formats to the community with print disabilities act as a powerful tool for poverty alleviation, providing persons with print disabilities with opportunities for professional growth, allowing them to contribute to their potential to the country hence developing local economies and become economically self-sufficient. Also, increasing the focus on accessible format works and improving the certainty about the system for their production and distribution under national copyright laws, the Marrakesh Treaty will strengthen local publishing industries and increase investment in copyright industries, which are key drivers for economic growth and development.

WIPO and a group of key stakeholders launched the Accessible Books Consortium (ABC) to boost the number of books in accessible formats for people around the globe who are blind, visually impaired, or otherwise print disabled[12] in June 2014. The Accessible Books Consortium (ABC) aims to augment the number of books published worldwide in accessible formats i.e., braille, audio and large print and to make them available to people who are blind, visually impaired or otherwise print disabled. The structure of the ABC Advisory Board consists of a maximum of 19 members and is chaired by the WIPO Director General.

CONCLUSION

The treaty will facilitate import of accessible format copies between the contracting parties especially such as educational institutions, libraries and other institutions working for the benefit of the visually impaired. It will again facilitate translation of imported accessible format copies and export of accessible format copies in other languages as well. The treaty requires signatories or the member states to adopt national law provisions that facilitate the availability of published works in formats like Braille, large prints or audio that are accessible to the blind and allow exchange across borders by organisations working for the visually impaired. This treaty has a clear humanitarian and social development perspective.

The objective of the treaty is to facilitate and create a set of mandatory limitations and exceptions for the benefit of the blind, visually impaired, and otherwise print disabled. The WIPO-administered Marrakesh Treaty makes the production and international transfer of specially-adapted books for people with blindness or visual impairments easier. It does this by establishing a set of limitations and exceptions to traditional copyright law.[13]

References:

[1] https://worldblindunion.org/programs/marrakesh-treaty/

[2] https://www.wipo.int/edocs/pubdocs/en/wipo_pub_marrakesh_flyer.pdf

[3] http://www.euroblind.org/campaigns-and-activities/current-campaigns/marrakesh-treaty

[4] The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 2013, Preamble.

[5] Supra note 4, art. 1.

[6] Supra note 4, art. 2, cl. c.

[7] Supra note 4, art. 8.

[8] http://www.euroblind.org/campaigns-and-activities/current-campaigns/marrakesh-treaty

[9] https://www.wipo.int/marrakesh_treaty/en/

[10] Supra note 2.

[11] https://www.wipo.int/pressroom/en/briefs/limitations.html

[12] https://www.accessiblebooksconsortium.org/about/en/

[13] Supra note 16.